INDIAN CHILD WELFARE ACT
General
Existing Indian Family Doctrine
Applicability
Notice - Affirmative Duty
- Reason to Know Might Be Indian Child
- To All Tribes
- To BIA
- To Indian Chair
- Timeliness of Discovery Not Relevant
- By Registered Mail
- Content of the Notice
- Record of Notice
- Suspend Court Proceedings for Ten Days
- Implied Finding of the Court
- Waiver
- Remedy
Intervention
Removal
GENERAL:
ICWA is federal legislation to protect Indian people and their culture from
extinction. (25 U.S.C. § 1902; In re Crystal K. (1990) 226 Cal.App.3d 655, 661.)
Thus, ICWA protects not just individual rights but also the interests of the tribe.
(Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 52.) “ICWA
protects the interests of Indian children and promotes the stability and security of Indian
tribes and families.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
“It is clear then that the Indian child welfare crisis is of massive proportions and
that Indian families face vastly greater risks of involuntary separation than are typical of
our society as a whole.” H.R. Rep. No. 95-1386, at 9 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7532.
Indian relationship solely an issue for Congress. (Seminole Tribe of Florida v.
Florida (1996) 517 U.S. 44, 60; Worcester v. State of Georgia (1832) 31 U.S. 515, 561.)
“Although the Guidelines do not have a binding effect on this court, the
construction of a statute by the executive department charged with its administration is
entitled to great weight.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 474; accord,
Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122
Cal.App.4th 626, 642-643; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422, fn. 3; In
re Krystal D. (1994) 30 Cal.App.4th 1778, 1801, fn. 7; In re Junious M. (1983) 144
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Cal.App.3d 786, 792, fn.7.) Guidelines are not binding. (In re Michael G. (1998) 63
Cal.App.4th 70, 714.)
Determination that half-siblings did not qualify is not determinative. Blood
quantum is not determinative. Enrollment in a tribe is not required. (Dwayne P. v.
Superior Court (2002) 103 Cal.App.4th 247, 254 [parents' lack of enrollment not
dispositive]; In re Desiree F. (2000) 83 Cal.App.4th 460, 470; In re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1422; In re Junious M. (1983) 144 Cal.App.3d 786, 796; In
re Jonathan D. (2001) 92 Cal.App.4th 105.)
Indian tribe must be federally recognized. (25 U.S.C. § 1903(8); In re Vanomi P.
(1989) 216 Cal.App.3d 156; In re John V. (1992) 5 Cal.App.4th 1201.)
In re S.B. (2005) 130 Cal.App.4th 1148, 1156-1158:
Among the stated purposes of the ICWA are “to protect the best
interests of Indian children and to promote the stability and security of
Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect
the unique values of Indian culture . . . .” (25 U.S.C. § 1902.)
In general, the ICWA applies to any state court proceeding involving
the foster care or adoptive placement of, or the termination of parental
rights to, an Indian child. (25 U.S.C. §§ 1903(1), 1911(1)-(3), 1912-1918,
1920, 1921.) “Indian child ” is defined as a child who is either (1) “a
member of an Indian tribe” or (2) “eligible for membership in an Indian
tribe and . . . the biological child of a member of an Indian tribe . . . .” (25
U.S.C. § 1903(4).)
We are concerned with three types of ICWA provisions, which we
will call the “notice provisions,” the “substantive provisions,” and the
“enforcement provision.”
First, under the notice provisions, if “the court knows or has reason
to know that an Indian child is involved,” the social services agency must
“notify . . . the Indian child’s tribe, by registered mail with return receipt
requested, of the pending proceedings and of their right of intervention.”
(25 U.S.C. § 1912(a).) “If the identity or location of . . . the tribe cannot be
determined,” the notice need only be given to the BIA. (Ibid.) “No foster
care placement or termination of parental rights proceeding shall be held
until at least ten days after receipt of notice by . . . the tribe or the [BIA].”
(Ibid.)
Second, under the substantive provisions, the Indian child’s tribe has
“a right to intervene at any point in the proceeding.” (25 U.S.C.
§ 1911(c).) As a condition of any foster care placement or termination of
parental rights, the court must find “that active efforts have been made to
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provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.” (25 U.S.C. § 1912(d).) The court also must find, based at
least in part on the “testimony of qualified expert witnesses,” that “the
continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child.” (25 U.S.C. §§ 1912(e), (f).)
For a foster care placement, this must be proven “by clear and convincing
evidence.” (25 U.S.C. § 1912(e).) For termination of parental rights, it
must be proven “beyond a reasonable doubt.” (25 U.S.C. § 1912(f).)
Third and finally, under the enforcement provision, on the petition of
the Indian child, a parent from whose custody an Indian child has been
removed, or the Indian child’s tribe, “any court of competent jurisdiction”
must invalidate any “action for foster care placement or termination of
parental rights” that violated the notice provision or any of the substantive
provisions. (25 U.S.C. § 1914.)
A host of subsidiary requirements have been adopted to implement,
interpret, and enlarge upon this statutory language. These requirements are
embodied in: (1) federal regulations (25 C.F.R. § 23.1 et seq.), which are
binding in all federal and state courts by virtue of the Supremacy Clause
(see Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 814); (2) federal
“Guidelines for State Courts” (Guidelines) (44 Fed.Reg. 67584 (Nov. 26,
1979)), which by their terms are “not intended to have binding legislative
effect” (ibid.); (3) a state rule of court (Cal. Rules of Court, rule 1439); (4)
several “mandatory” state Judicial Council forms (JV-130, JV-135; see also
Gov. Code, § 68511); and (5) sections 31-515 and 31-520 of the state Child
Welfare Services Manual of Policies and Procedures (CWS Manual) (see In
re Asia L. (2003) 107 Cal.App.4th 498, 506). [fn: Available at
<http://www.cdss.ca.gov/getinfo/pdf/cws4.pdf>, as of June 30, 2005.]
For example, the ICWA notice provisions, by their terms, apply if
“the court knows or has reason to know that an Indian child is involved
. . . .” (25 U.S.C. § 1912(a).) The ICWA does not define “reason to
know.” Neither do the controlling federal regulations. (See 25 C.F.R.
§ 23.11(a).) The Guidelines, however, require “the state court [to] make
inquiries to determine if the child involved is a member of an Indian tribe
or if a parent of the child is a member of an Indian tribe and the child is
eligible for membership in an Indian tribe.” (Guidelines, § B.5.a, 44
Fed.Reg. at p. 67588, italics added.) The state rule of court provides that
“[t]he court [and] the county welfare department . . . have an affirmative
duty to inquire whether a child for whom a [dependency] petition . . . is to
be, or has been, filed is or may be an Indian child.” (Cal. Rules of Court,
rule 1439(d).) Judicial Council form JV-135, effective January 1, 2005,
provides for a parent to indicate whether the child is or might be an Indian
child.
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The CWS Manual, finally, provides that “the social worker shall:
[¶] . . . [i]dentify in the petition that the child is or may be an Indian child
as defined by the ICWA.” (CWS Manual, § 31-515.) “To make such a
determination, the social worker shall ask the child, his parent or custodian
whether the child is or may be a member of an Indian tribe, or whether the
child identifies himself/herself as a member of a particular Indian
organization.” (CWS Manual, § 31-515.111.) If the child’s Indian status
cannot be determined before the first hearing, the social worker must
“[a]dvise the court of all information which indicates that the child may be
an Indian child,” “[a]dvise the court of all efforts made to establish the
child’s status as an Indian child,” and “[c]ontinue contacts with the BIA
until the question of the child’s status as an Indian child . . . has been
resolved and the resolution is documented in the case record for future
reference.” (CWS Manual, § 31-515.2.)
The ICWA expressly permits “[s]tate or [f]ederal law [to] provide[]
a higher standard of protection . . . than the rights provided under” the
ICWA. (25 U.S.C. § 1921.) This simply means, however, that the ICWA
does not preempt such higher state standards. It does not incorporate such
higher state standards into the ICWA itself. The enforcement provision,
by its terms, applies only to violations “of sections 1911, 1912, and 1913 of
this title” (25 U.S.C. § 1914); it does not purport to address the penalty for
other violations of federal or state law.
Under section 1911(a), ICWA creates a tribal and individual right of action. (Doe
v. Mann (9th Cir. 2005) 415 F.3d 1038, 1047.)
“Noncompliance with ICWA has been a continuing problem in juvenile
dependency proceedings conducted in this state . . . . ” (In re I.G. (2005) 133
Cal.App.4th 1246, 1254-1255.)
Determining whether a tribe should be federally recognized is a function of the
executive branch. (United States v. John (1978) 437 U.S. 634, 652-653.) Congress
requires the publishing of the list in the federal register. (25 U.S.C. § 479a-1.) (Agua
Caliente Band of Cahuilla Indians v. Superior Court (Fair Political Practices Com.)
(2006) 40 Cal.4th 239, 243, fn. 1.) The federal register need not be the only source of
the tribal addresses, as CPS can rely on its own list. (In re N.M. (2008) 161 Cal.App.4th
253, 268.)
Concerning some of the history of some of the tribes that ended up in Oklahoma.
(In re D.N. (2013) 218 Cal.App.4th 1246, 1251-1252.)
Welfare and Institutions Code sections 224.6 and 361.7 provide broader protection
than the federal ICWA. (See In re Brandon T. (2008) 164 Cal.App.4th 1400, 1413-1414;
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but see In re K.B. (2009) 173 Cal.App.4th 1275, 1284, fn. 10 [§ 361.7 merely “was
enacted to bring California’s dependency statutes into compliance with ICWA.”].)
EXISTING INDIAN FAMILY DOCTRINE:
The Existing Indian Family Doctrine applies to block intervention or action from
intervention by a tribe. (In re Santos Y. (2001) 92 Cal.App.4th 1274, overruled in In re
Alexandria P. (2014) 228 Cal.App.4th 1322, 1343-1344 [2d Dist.]; Crystal R. v. Superior
Court (1997) 59 Cal.App.4th 703, 706, overruled in In re Vincent M. (2007) 150
Cal.App.4th 1247, 1267; see also id. at p. 1271 (conc. opn. of Bamattre-Manoukian, J.)
[6th Dist.]; In re Bridget R. (1996) 41 Cal.App.4th 1483, 1497-1498 [2d Dist., Div. 3:
must live on reservation or be culturally or socially connected to the Indian community;
twins in adoptive home for two years since birth after mother relinquished]; In re
Alexander Y. (1996) 45 Cal.App.4th 1483 1493-1494 [4th Dist., Div. 3]; cf. In re Alicia
S. (1998) 65 Cal.App.4th 79, 88 [5th Dist.: “existing Indian family doctrine not exist but
statute allows placement with non-Indian for good cause]; In re Wanomi P. (1989) 216
Cal.App.3d 156, 168; In re Derek W. (1999) 73 Cal.App.4th 828.)
But most courts have rejected the doctrine. (See, e.g., In re Alexandria P. (2014)
228 Cal.App.4th 1322, 1343-1345 [2d Dist. disapproving of Santos Y. and agreeing with
Vincent M.]; In re Vincent M. (2007) 150 Cal.App.4th 1247, 1260-1267 [6th Dist.];
Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 994-996 [acknowledging a conflict
of authority, 3d Dist. says the doctrine does not apply to ICWA]; Adoption of Lindsay C.
(1991) 229 Cal.App.3d 404 [1st Dist.]; In re Crystal K. (1990) 226 Cal.App.3d 655 [3d
Dist.]; In re Junious M. (1983) 144 Cal.App.3d 786 [the tribe makes the determination];
In re Desiree F. (2000) 83 Cal.App.4th 460, 472-475; In re Laura F. (2000) 83
Cal.App.4th 583, 595 [not follow full faith and credit clause]; In re Naomi P (1989) 216
Cal.App.3d 156; In re Derek W. (1999) 73 Cal.App.4th 828, 833.) The tribe exclusively
decides who is an Indian child. (In re Junious M. (1983) 144 Cal.App.3d 786, 793; see
generally Santa Clara Pueblo v. Martinez (1978) 436 U.S. 19, 72, fn. 32; but see In re
Laura F. (2000) 83 Cal.App.4th 583, 595 [not follow full faith and credit clause].) “The
only exceptions to application of ICWA’s provisions have been specified by Congress;
judicial creation of additional exceptions of any kind are not permitted.” (Adoption of
Hannah S. (2006) 142 Cal.App.4th 988, 996.)
Even if the Existing Indian Family Doctrine might apply, notice must be given
under ICWA before determining whether the applies because the tribe has a right to
litigate the issue. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 234, 236.)
9 states adopted the Existing Indian Family Doctrine: Alabama, Indiana, Kansas,
Kentucky, Louisiana, Missouri, New York, Oklahoma, Tennessee, and Washington. 9
states rejected the doctrine: Alaska, Arizona, Idaho, Illinois, Michigan, Minnesota, New
Jersey, South Dakota, and Utah. (In re Santos Y. (2001) 92 Cal.App.4th 1274; 1304, fn.
16.) The doctrine started in Kansas soon after ICWA was enacted. (Adoption of
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Hannah S. (2006) 142 Cal.App.4th 988, 995, citing In re Adoption of Baby Boy L. (1982)
231 Kan. 199 [643 P.2d 168, 175].) That court has since repudiated the doctrine, as have
courts in many other states. (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1343,
citing In re A.J.S. (Kan. 2009) 204 P.3d 543, 548-551 and also citing Thompson v.
Fairfax County Dept. of Family Services (Va.Ct.App. 2013) 747 S.E.2d 838, 847-848
[citing and joining “the growing chorus of courts that have rejected the Existing Indian
Family Exception”].)
Congress rejected amending ICWA in 1995-1996 session. The United States
Supreme Court has denied certiorari in eight cases. The California Supreme Court has
denied review. (In re Santos Y. (2001) 92 Cal.App.4th 1274; 1205 & fn. 17.)
Under the doctrine, ICWA applies only to situations to which a child is not being
removed from an existing Indian family. (In re Santos Y. (2001) 92 Cal.App.4th 1274;
1303.)
“[U]nder the Fifth, Tenth and Fourteenth Amendments to the United States
Constitution, ICWA does not and cannot apply to invalidate termination of parental rights
respecting an Indian child who is not domiciled on a reservation, unless the child’s
biological parent, or parents, are not only of American Indian descent, but also maintain a
significant social, cultural, or political relationship with their tribe.” (In re Santos Y.
(2001) 92 Cal.App.4th 1274; 1306, quoting In re Bridget R. (1996) 41 Cal.App.4th 1483,
1492; but see In re Vincent M. (2007) 150 Cal.App.4th 1247, 1267 [ICWA does not
violate the Tenth Amendment because Welf. & Inst. Code, § 360.6 requires the state
court to comply with ICWA].)
It violates the Equal Protection Clause under the strict scrutiny test because
without the cultural connection, there is not a sufficient compelling state interest for race
based disparate treatment. (In re Santos Y. (2001) 92 Cal.App.4th 1274; 1317-1321; In
re Bridget R. (1996) 41 Cal.App.4th 1483, 1508-1510.)
ICWA is not justified by “Indian Commerce Clause” of Article I, section 8, clause
3 because there was no substantial nexus between Indian commerce and child custody
proceedings. Thus, under Tenth Amendment, Congress cannot interfere with the rights
of the states. (In re Santos Y. (2001) 92 Cal.App.4th 1274; 1309, 1322-1323; In re
Bridget R. (1996) 41 Cal.App.4th 1483, 1510-1511; see Adoptive Couple v. Baby Girl
(2013) 133 S.Ct. 2552, 2565-2571 (conc. opn. of Thomas, J.); but see County of Oneida
v. Oneida Indian Nation (1984) 470 U.S. 226, 234 [only federal government can regulate
relations with Indians]; Worcester v. The State of Georgia (1832) 31 U.S. 515, 561
[same].) But “[t]his view was not adopted by any other member of the United States
Supreme Court, and even if it had any viability, it would not bar the application of
California statutes that parallel the ICWA. Thus, the trial court’s decision would still be a
legitimate application of Welfare and Institutions Code section 360.31.” (In re
Alexandria P. (2014) 228 Cal.App.4th 1322, 1345-1346 [addressing Justice Thomas’s
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opinion in Adoptive Couple].)
Welfare and Institutions Code section 360.6 cannot override federal and
constitutional authority. (In re Santos Y. (2001) 92 Cal.App.4th 1274; 1317.)
On the other hand, the Existing Indian Family Doctrine is not found in the federal
statute. (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1265.) It is a “[c]ontroversial
judicially created exception to the ICWA that has become known as the ‘existing family
doctrine.’ ” (In re Vincent M. (2007) 150 Cal.App.4th 1247, 1260.)
The Fourteenth Amendment does not apply to the federal government. Therefore,
the Equal Protection Clause of the Fourteenth Amendment cannot invalidate ICWA.
There is an equal protection component of the Due Process Clause to the Fifth
Amendment. “The United States Supreme Court has held that ‘[t]he decisions of this
Court leaves no doubt that federal legislation with respect to Indian tribes, although
relating to Indians as such, is not based upon impermissible racial classification.’
(United States v. Antelope (1977) 430 U.S. 641, 645.) Instead, tribal Indians belong to a
political group that is specially recognized by federal law as a sovereign nation.” (Flynt
v. California Gambling Control Commission (2002) 104 Cal.App.4th 1125, 1141.) In
Flynt, publisher Larry Flynt, who also owned card rooms in Los Angeles sued to
invalidate under the Equal Protection Clause California’s compact with Indian tribes to
permit gambling on reservations under the federal Indian Gaming Regulatory Act. The
Attorney General’s Office, representing the state gambling commission, successfully
argued the rational basis test applied and the statutes were valid.
“It is an ‘undisputed fact that Congress has plenary authority to legislate for the
Indian tribe in all matters.’ (United States v. Wheeler (1978) 435 U.S. 313, 319.)”
(People v. Ramirez (2007) 128 Cal.App.4th 1464, 1474.) “The plenary power of
Congress to deal with the special problems of Indians” and “the assumption of a
guardian-ward status” permitted Congress to enact laws to protect the interests of Indian
tribes. (Morton v. Mancari (1974) 417 U.S. 535, 551-552.) The statute would be
constitutional “[as] long as the special treatment can be tied rationally to the fulfillment
of Congress’ unique obligation toward the Indians.” (Id., at p. 555.) “[T]his preference
does not constitute ‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference.
Rather, it is an employment criterion reasonably designed to further the cause of Indian
self-government and to make the BIA more responsive to the needs of is constituent
groups. (Id., at pp. 553-554, fn. omitted.) “The preference is not directed towards a
‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally
recognized’ tribes. This operates to exclude many individuals who are racially to be
classified as “Indians.’ In this sense, the preference is political rather than racial in
nature. . . . ” (Id., at p. 553, fn. 24.) The “central purpose of the Indian Commerce
Clause,” according to the Supreme Court, “is to provide Congress with plenary power to
legislate in the field of Indian affairs.” (Cotton Petroleum Corp. v. New Mexico (1989)
490 U.S. 163, 192.) It is a political classification, not one based on national origin.
(EEOC v. Peabody Western Coal Co. (9th Cir. 2014) 773 F.3d 977, 986-89; but In re
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Santos Y. (2001) 92 Cal.App.4th 1274; 1318-1319, 1321 Indian child is arguably not a
“political classification” because Mancari involved matters of exclusively Indian concern
and had almost no application to other situations].) Further, the Treaty Clause (U.S.
Const., art. II, § 2, cl. 2) does not literally authorize Congress to act legislatively, but
treaties made pursuant to that power can authorize Congress to deal with matters with
which otherwise “Congress could not deal.” (See Missouri v. Holland (1920) 252
U.S. 433.) Treaties with Indian tribes have empowered Congress to legislate the extent
of a tribe’s sovereignty. (United States v. Lara (2004) 541 U.S. 193, 202-203.)
“The United States Supreme Court has consistently rejected claims that laws that
treat Indians as a distinct class violate equal protection. [Citations.] The different
treatment of Indians and non-Indians under ICWA is based on the political status of the
parents and children and the quasi-sovereign nature of the tribe. [Citations.] We apply
the rational basis test to [the] County’s challenges, and we conclude ICWA is rationally
related to the protection of the integrity of American Indian families and tribes and is
rationally related to the fulfillment of Congress’s unique guardianship obligations toward
Indians.” (Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 996, quoting In the
Interest of A.B. (2003) 2003 N.D. 98 [663 N.W.2d 625, 636]; accord, In re Vincent M.
(2007) 150 Cal.App.4th 1247, 1266-1267.)
“As Mancari illustrates, a tribal preference is not transformed from a political to a
racial classification that requires strict scrutiny merely because the vehicle for the
preference consists of individual members of tribes.” (Artichoke Joe’s v. Norton (E.D.
Cal. 2002) 216 F.Supp.2d 1084, 1132.) “Individual members are benefitted [sic] not
because they are Indian per se but because they are members of tribes that have entered
into compact . . . . ” (Ibid.) The Supreme Court “has repeatedly that the peculiar
semisovereign and constitutionally recognized status of Indians justifies special treatment
on their behalf when rationally related to the Government’s ‘unique obligation toward the
Indians.’ ” (Washington v. Fishing Vessel Assn. (1979) 443 U.S. 658, 673, fn. 20, quoting
Mancari, supra.) “It is settled that ‘the unique legal status of Indian tribes under federal
law’ permits the Federal Government to enact legislation singling out tribal Indians,
legislation that might otherwise be constitutionally offensive.” (Washington v. Yakima
Indian Nation (1979) 439 U.S. 463, 500-501; see also Delaware Tribal Business Com. v.
Weeks (1977) 430 U.S. 73, 85.) The Supreme Court “has never overturned a statute or
treaty affecting Indians or natives.” (Williams v. Babbitt (9th Cir. 1997) 115 F.3d 657,
663.) “ ‘[A]t least during the first century of America’s national existence . . . Indian
affairs were more an aspect of military and foreign policy than a subject of domestic or
municipal law.’ [Citation.] Insofar as that is so, Congress’ legislative authority would
rest in part, not upon ‘affirmative grants of the Constitution,’ but upon the Constitution’s
adoption of preconstitutional powers necessarily inherent in any Federal Government,
namely powers that this Court has described as ‘necessary concomitants of nationality.’
[Citations.]” (United States v. Lara (2004) 541 U.S. 193, 201.)
“Much of the theory that underpins Indian Law is that the Indian tribes possessed
certain sovereign rights based on their existence as distinctive political entities exercising
authority over their members prior to the incorporation of their territory into the United
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States, United States v. Wheeler, 435 U.S. 313, 322 (1978); thus, ‘tribes retain whatever
sovereignty they had as the original inhabitants of this continent to the extent that
sovereignty has not been removed by Congress.’ Montana v. Gilham, 133 F.3d 1133,
1137 (9th Cir. 1998).” (Kahawaiolaa v. Norton (9th Cir. 2004) 386 F.3d 1271, 1272.)
“Historically, a formal relationship between the United States and American Indian
Tribes has been political, rather than race based . . . . Indeed, historical evidence suggests
that ‘the Founders regarded Indians as distinct nations to be dealt with diplomatically and
at arm’s length.’ [Citation.]” (Kahawaiolaa v. Norton (9th Cir. 2004) 386 F.3d 1271,
1278.) ICWA does not violate due process. (In re Vincent M. (2007) 150 Cal.App.4th
1247, 1265.)
“Indian tribes are ‘ “domestic dependent nations” ’ that exercise ‘inherent
sovereign authority.’ Oklahoma Tax Comm’n v. Citizen Band Potawatomi Tribe of
Okla., 498 U. S. 505, 509 (1991) (Potawatomi) (quoting Cherokee Nation v. Georgia, 5
Pet. 1, 17 (1831)). As dependents, the tribes are subject to plenary control by Congress.
See United States v. Lara, 541 U. S. 193, 200 (2004) (‘[T]heConstitution grants
Congress’ powers ‘we have consistently described as “plenary and exclusive” ’ to
‘legislate in respect to Indian tribes’). And yet they remain ‘separate sovereigns
pre-existing the Constitution.’ Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56
(1978).” (Michigan v. Bay Mills Indian Community (2014) 134 S.Ct. 2024, 2030.)
APPLICABILITY:
ICWA applies to foster placements, guardianship, and delinquencies when the
minor commits an act that would not amount to a crime if committed by an adult under
Welfare and Institutions Code sections 300 et seq., 601, 602, 727-728; Probate Code
sections 1500 et seq. and 2112. (See In re Alejandro A. (2008) 160 Cal.App.4th 1343,
1347-1348 [does not normally apply to delinquencies due to criminal behavior].) It
applies to termination of parental rights under Family Code sections 7660-7664 and
Welfare and Institutions Code sections 366.26, 727.31, and 727.4. It applies to
pre-adoptive and adoptive placements under Family Code section 8500 et seq. and
Welfare and Institutions Code sections 366.26 and 727.31. It does not apply to divorce
proceedings (25 U.S.C. § 1903(1)) but does apply to private adoptions. (Adoption of
Lindsay C. (1991) 229 Cal.App.3d 404; In re Crystal K. (1990) 226 Cal.App.3d 655; In
re Noreen G. (2010) 181 Cal.App.4th 1359, 1385-1390; In re Jennifer A. (2002) 103
Cal.App.4th 692, 699, 701 [applies in dependency cases where the minor is placed in
foster care, though eventually placed with the father]; but see In re Alejandro A. (2008)
160 Cal.App.4th 1343, 1347-1348 [does not apply to delinquency placement].) While
the federal ICWA statute does not apply to most delinquencies, the state provision does,
purportedly superseding Lindsay C. (R.R. v. Superior Court (2009) 180 Cal.App.4th 185,
196-206), but federal law preempts the state law (id. at pp. 206-208).
ICWA has no practical application at the detention hearing. (In re S.B. (2005)
130 Cal.App.4th 1148, 1162.) It applies at the jurisdictional and dispositional hearings.
(In re S.B. (2005) 130 Cal.App.4th 1148, 1164.)
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ICWA does not apply when the court orders family maintenance. (In re Alexis H.
(2005) 132 Cal.App.4th 11, 14-16.)
“A child custody proceeding is defined to include any proceeding involving foster
care placement, termination of parental rights, preadoptive placement, or adoption
proceedings. (25 U.S.C. § 1903(1).) California Rules of Court, rule 1439(b) provides
that title 25 United States Code sections 1911 and 1912, in the ICWA apply to ‘all
proceedings under section 300 et seq., including detention hearings, jurisdiction hearings,
disposition hearings, reviews, hearings under section 366.26, and subsequent hearings
affecting the status of the Indian child.’ ” (In re Desiree F. (2000) 83 Cal.App.4th 460,
473.)
ICWA does not apply to marital dissolutions (25 U.S.C. § 1903(1)), but marital
dissolutions do not include terminating parental rights. (Adoption of Lindsay C.
(1991) 229 Cal.App.3d 404, 408 [private adoption by step-father from Indian father]; In
re Crystal K. (1990) 226 Cal.App.3d 655, 661-662 [same].)
A delinquency court must inquire about the ward’s possible Indian ancestry. (In
re W.B. (2012) 55 Cal.4th 30, 52-53, 54, 57-58.) A delinquency court need not provide
notice unless the minor is removed only for committing a status offense, or is placed out
of home solely because of parental neglect and the court expressly states so on the record,
or in dual status cases when the minor is placed out of home for reasons not related to
rehabilitation. (In re W.B. (2012) 55 Cal.4th 30, 52-60.)
ICWA does not apply to delinquency proceedings, at least as long as the minor is
accused of an offense which would be a crime if committed by an adult. (25 U.S.C. §
1903(1); In re Enrique O. (2006) 137 Cal.App.4th 728, 732-736; In re Lindsay C. (1991)
221 Cal.App.3d 404, 408.)
“The courts of this state must yield to governing federal law.” (In re Desiree F.
(2000) 83 Cal.App.4th 460, 469.)
ICWA does not pre-empt state law unless there is a direct conflict. (Letittia V. v.
Superior Court (2000) 81 Cal.App.4th 1009, 1011; In re Michael G. (1998) 63
Cal.App.4th 700 [not apply beyond a reasonable doubt standard]; In re Brandon M.
(1997) 54 Cal.App.4th 1387, 1399 [de facto parent].)
Juvenile court shall give tribal decisions full faith and credit. (25 U.S.C. §
1911(d); see also D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 206-208 [court
erred in not requiring notice merely because the parents were not enrolled in a tribe]; but
see In re Laura F. (2000) 83 Cal.App.4th 583 [tribal resolution opposing adoption not a
judgment entitled to full faith and credit].) The tribe’s decision that a child is or is not a
member, or eligible to be a member is determinative. (In re Desiree F. (2000) 83
10
Cal.App.4th 460, 470; In re D.N. (2013) 218 Cal.App.4th 1246, 1253.)
An alleged father cannot contest on appeal ICWA issues. (In re Daniel M. (2003)
110 Cal.App.4th 703, 707-708.) There is no requirement to provide notice to the
father’s tribes if he is only an alleged father. (In re E.G. (2009) 170 Cal.App.4th 1530,
1533.)
When the court of appeal reversed the finding that the father is not the presumed
father, and he might have Indian ancestry, the court shall remand the matter to determine
if notice under ICWA is required. (In re J.O. (2009) 178 Cal.App.4th 139, 154.)
ICWA applies to federally recognized tribes. Although Welfare and Institutions
Code section 306.6, subdivision (d) permits notice to a tribe that is not federally
recognized, there is no error when there is failure to do so. (In re A.C. (2007) 155
Cal.App.4th 282, 286-287; see In re K.P. (2009) 175 Cal.App.4th 1, 5 [there is no duty to
provide notice to a tribe that is not federally recognized]; but see 25 U.S.C. § 1921 [state
law applies if it affords greater protection].)
ICWA did not apply to a 20 year-old in a group home because it was not an
adoptive placement. (In re Melissa R. (2009) 177 Cal.App.4th 24, 33-34.)
Appealability: ICWA cannot be raised in an appeal concerning an order which
would not be affected by ICWA. (In re Holly B. (2009) 172 Cal.App.4th 1261, 1267
[appeal from psychological evaluation of the minor].)
NOTICE - AFFIRMATIVE DUTY:
“The juvenile court and the county welfare department have an affirmative duty to
inquire whether the child subject to the dependency petition is or may be an Indian child.
(Cal. Rules of Court, rule 1439(d).)” (In re Desiree F. (2000) 83 Cal.App.4th 460, 470;
accord, In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264 [error to not give copies of
notice to trial court for determination, though copies sent to the court of appeal]; In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [court has duty to inquire on ancestry];
but see In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1429 [rule of court requiring a
continuing duty does not apply to dependencies which began before Jan. 1, 2005].)
There exists at least a continuing duty to inquire by the social worker when the
parent gives contradictory information about possible Indian heritage. (In re Gabriel G.
(2012) 206 Cal.App.4th 1160, 1167-1168; see In re A.G. (2012) 204 Cal.App.4th 1390,
1397 [error not to send out notice though parent at first thought there was no Indian
ancestry].)
“While the petitioning agency may have the duty to provide ICWA notice, it is the
role of the juvenile court, not the agency, to determine whether the ICWA notice is
11
proper.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.)
Error when there was no evidence the social worker asked a parent about Indian
ancestry. (In re J.N. (2006) 138 Cal.App.4th 450, 461.)
Policy: “One of the primary purposes of giving notice to the tribe is to enable the
tribe to determine whether the child involved in the proceedings is an Indian child.” (In
re Desiree F. (2000) 83 Cal.App.4th 460, 470.) “Notice is a key component of the
congressional goal to protect and preserve Indian tribes and Indian families. . . . Without
notice, these important rights granted by the Act become meaningless.” (In re Kahlen
W. (1991) 233 Cal.App.3d 1414, 1421.) This is because “ ‘the statute and all cases
applying the Act unequivocally require actual notice to the tribe’ [or the Bureau of Indian
Affairs] of both the proceedings and of the right to intervene. (Id., at p. 1422.)” (In re
Desiree F. (2000) 83 Cal.App.4th 460, 469-470; accord In re Samuel P. (2002) 99
Cal.App.4th 1259, 1264-1265, 1267; In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108,
citing 25 C.F.R. § 23.11(a).) “The ICWA presumes it is in the best interests of the child
to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its
future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th
460, 469.)
The duty includes the requirement to inquire about contradictory information
provided by family members. (In re L.S. (2014) 230 Cal.App.4th 1183, 1196-1198.)
There is no duty to ask the great grandparents for information. (In re K.M. (2009)
172 Cal.App.4th 115, 119.)
There is no duty to ask relatives for information when the relatives already told the
court they knew nothing that would be of assistance. (In re C.Y. (2012) 208 Cal.App.4th
34, 40.)
There is no duty when there is an adopted parent to search the parent’s adoption
records to determine her biological ancestry. (In re C.Y. (2012) 208 Cal.App.4th 34,
40-42.)
California can provide greater protection than the federal law. (In re Jack C.
(2011) 192 Cal.App.4th 967, 981.)
Federal law does not require an inquiry, but California law does. (In re Noreen
G. (2010) 181 Cal.App.4th 1359, 1386.)
Error when the parent was not asked to fill out a JV-130 form. (In re H.B. (2008)
161 Cal.App.4th 115, 121.)
Prejudice: Failure to fill out JV-130 form is state error, so subject to harmless
error analysis. (In re H.B. (2008) 161 Cal.App.4th 115, 121-122.)
12
Courts have observed that child protective services have continued to fail to
comply with ICWA. (Justin L. v. Superior Court (2008) 165 Cal.App.4th 1406,
1409-1410.)
NOTICE - REASON TO KNOW MIGHT BE INDIAN CHILD:
“if the court knows or has reason to know that an ‘ “Indian child” ’ is involved in a
‘ “child custody proceeding,” ’ as those terms are defined in the Act (25 U.S.C. §
1903(1), (4)), the social services agency must send notice to the child’s parent, Indian
custodian, and tribe by registered mail, with return receipt requested. (25 U.S.C. §
1912(a).)” (In re W.B. (2012) 55 Cal.4th 30, 48.)
“To ensure a tribe’s right to intervene, the ICWA requires ‘where the court knows
or has reason to know that an Indian child is involved,’ the party seeking termination of
parental rights to intervene. (25 U.S.C. § 1912(a); see also Adoption of Lindsay C.
(1991) 229 Cal.App.3d 404, 408.)” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)
“The Indian status of the child need not be certain. Notice is required whenever the
court knows or has reason to believe the child is an Indian child. (§ 1912(a) . . . . )”
(In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422; (25 U.S.C. § 1912(a); In re Jack C.
(2011) 192 Cal.App.4th 967, 976-981 [a minor can be an Indian, if so determined by the
tribe, even if not enrolled]; In re Alicia M. (2008) 161 Cal.App.4th 1189, 11968 [saying
on the JV-130 form the minor might have Apache or Navajo heritage was sufficient]; In
re Antoinette S. (2002) 104 Cal.App.4th 1401, 1407-1408 [only a “minimal showing” is
enough to trigger notice requirement; father’s suggestion that ancestors might be Indians
were enough]; In re Suzanna L. (2002) 104 Cal.App.4th 223, 231-232 [when maternal
grandparents are Indian though uncertain as to which tribe; failure to give notice of right
to intervene renders notice defective];Dwayne P. v. Superior Court (2002) 103
Cal.App.4th 247, 252, 256-258 [mother’s statement that have some Cherokee blood
triggers the notice requirement; require only a suggestion, implication, or hint to trigger
the court’s sua sponte requirement]; In re Samuel P. (2002) 99 Cal.App.4th 1259,
1265-1266 [if there exists “probable cause” which exists when great-great grandparent
born on reservation, great grandparent received BIA services until 1994, aunt went to
Indian school and was tribal council member, family gave names]; see In re Alliyah G.
(2003) 109 Cal.App.4th 939, 942 [enough evidence that not an Indian child when parents
say there was no Indian blood]; but see In re Hunter W. (2011) 200 Cal.App.4th 1454,
1465-1469 [mother said there might be Indian ancestry but knew not which tribe,
ancestry might be through maternal grandfather who might not be the biological ancestor
of the minor, and she knew not how to contact him]; In re Jonah D. (2010) 189
Cal.App.4th 118, 125 [no notice required when the paternal grandmother said she knew
not what tribe and there was not a living relative who could give the necessary
information]; In re Z.N. (2010) 181 Cal.App.4th 282, 297 [no requirement to give notice
if the child or an ancestor is not enrolled in a tribe]; In re O.K. (2003) 106
Cal.App.4th 152, 156-157 [information from paternal grandmother that might be Indian
13
blood or that father “may have Indian in him” too vague to trigger notice requirement]; In
re Aaron R. (2005) 130 Cal.App.4th 697, 707-708 [grandmother saying she has
associated with a tribe not enough to require notice or to require further inquiry by CPS].)
There exists reason to believe the minor might have Indian heritage, though the
parent did not know which tribe; the department should give notice to BIA. (In re
Joseph P. (2006) 140 Cal.App.4th 1524, 1530; contra In re Jeremiah G. (2009) 172
Cal.App.4th 1514, 1519-1521.)
There exists reason to believe the minor might have Indian heritage when the
parent said might have Yaqui or Navajo heritage, though later said did not. (In re
Damian C. (2009) 178 Cal.App.4th 192, 199.)
ICWA applies if there might be heritage through a biological father, even if he is
not a presumed father. (In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1166-1167.)
ICWA applies if the adoptive parents might have Indian ancestry. (In re B.R.
(2009) 176 Cal.App.4th 773, 780-785; but see In re Francisco D. (2014) 230 Cal.App.4th
73, 83-84.)
ICWA does not apply if the minor lived near an Indian reservation but there was
no evidence of Indian heritage. (In re Alejandro A. (2008) 160 Cal.App.4th 1343, 1347.)
No notice error when minor and sibling did not qualify before. (In re E.W. (2009)
170 Cal.App.4th 396, 400.)
Prejudice: Error in notice harmless when the tribe determined that the minor’s
sibling did not qualify. (In re Z.N. (2010) 181 Cal.App.4th 282, 301-302.)
NOTICE - TO ALL TRIBES:
“Formal notice of the proceedings must be sent to all tribes in which the minor
may be eligible for membership. (Rule 1439(f)(3) . . . . )” (In re Desiree F. (2000) 83
Cal.App.4th 460, 475-476; accord, In re S.B. (2008) 164 Cal.App.4th 289, 302-303
[although the parent had Mescalero heritage, CPS should have sent notice to all Apache
tribes]; In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740; but see In re Edward H.
(2002) 100 Cal.App.4th 1, 4-5 [lack of notice to two of three Chocktaw tribes adequate
because sent notice to BIA]; In re C.D. (2003) 110 Cal.App.4th 214, 227 [lack of notice
to one of three tribes not invalid because also served notice to BIA].) If the tribe is not
known, notice shall be sent to BIA. (Rule 1439(f)(4).) Lack of notice to BIA harmless
when tribe already said minor did not qualify. (In re Christopher I. (2003) 106
Cal.App.4th 533, 567.)
A list of federally recognized tribes are found at 65 Fed. Reg. 13298 (Mar. 13,
2000) and 67 Fed. Reg. 46328 (July 12, 2002) A list of the proper addresses to where to
send the notices is at 66 Fed. Reg. 74451 (Dec. 12, 2001). The Guidelines in the Federal
14
Register are not binding on state courts. (44 Fed. Reg. 67584, 67585 (Nov. 26, 1979).)
Notice need not be sent to a tribe which has been absorbed into another tribe. (In
re Louis S. (2004) 117 Cal.App.4th 622, 632-633.)
Father’s last minute comment that might be from a certain tribe did not require
new notices. (In re Joseph P. (2006) 140 Cal.App.4th 1524, 1531.)
Amendments effective January 1, 2007 to state statutes concerning ICWA notice
do not apply to court findings made before then, though the court subsequently reiterated
the findings. (In re William K. (2008) 161 Cal.App.4th 1, 12.) The amendments were
not intended to weaken protections. (In re Damian C. (2009) 178 Cal.App.4th 192,
197-199.)
Welfare and Institutions Code sections 224-224.6 and 2008 amendments to
California Rules of Court did not diminish the requirement to provide notice. (In re
Alicia M. (2008) 161 Cal.App.4th 1189, 1198-1201.)
No reversal if there is failure to send notice to the parent. (In re S.B. (2008) 164
Cal.App.4th 289, 301-302.)
NOTICE - TO BIA:
Under Welfare and Institutions Code section 224.2, notice must be sent to each
tribe, even if notice is sent to BIA. (In re Alicia M. (2008) 161 Cal.App.4th 1189,
1201-1202; In re J.T. (2007) 154 Cal.App.4th 986, 993-994; cf. In re Edward H. (2002)
100 Cal.App.4th 1, 4 [under old law, even if a tribe is known, notice to BIA is
sufficient].)
“[I]f the identity or location of the tribe cannot be determined, the notice shall be
given to the Secretary of the Interior.” (25 U.S.C. § 1912(a); In re Antoinette S. (2002)
104 Cal.App.4th 1401, 1406; In re Louis S. (2004) 117 Cal.App.4th 662, 632-633 [notice
to BIA eliminated need to notice certain known tribes]; In re Suzanna L. (2002) 104
Cal.App.4th 223, 232 [if the tribe is unknown, then notify BIA]; Dwayne P. v. Superior
Court (2002) 103 Cal.App.4th 247, 253 [if the tribe is unknown, notify BIA]; In re
Desiree F. (2000) 83 Cal.App.4th 460, 469; In re Kahlen W. (1991) 233
Cal.App.3d 1414, 1422.)
No response from BIA does not matter when notice was given to all of the tribes.
(In re E.W. (2009) 170 Cal.App.4th 396, 403.)
NOTICE - TO INDIAN CHAIR:
Notice was defective when not sent to the Indian chair or designated agent.
(Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783 [sent to an old address]; In
re H. A. (2002) 103 Cal.App.4th 1206, 1213.)
15
Under 25 Code of Federal Regulations 23.12, the Federal Register lists designated
agents and addresses. Though lists maintained by the state DSS might make sending
notice easier, the Agency should rely on the Federal Register. (In re Alicia M. (2008)
161 Cal.App.4th 1189, 1201-1202, fn. 6.)
Sending notice to the incorrect address was harmless when the tribe received
actual notice. (In re J.T. (2007) 154 Cal.App.4th 986, 994; In re Mary G. (2007) 151
Cal.App.4th 184, 211; In re K.W. (2006) 144 Cal.App.4th 1349, 1360.)
But merely because a return receipt was signed by the wrong person at the wrong
address does not indicate the notice was properly sent. (In re Alicia M. (2008) 161
Cal.App.4th 1189, 1197-1201; In re J.T. (2007) 154 Cal.App.4th 986, 994; Nicole K. v.
Superior Court (2007) 146 Cal.App.4th 779, 784 [though someone signed the return
receipt, there was no evidence the person was authorized when notice was sent to the
wrong address and no further showing of prejudice was required].)
NOTICE - TIMELINESS OF DISCOVERY NOT RELEVANT:
“Notice is mandatory, regardless of how late in the proceedings a child’s possible
Indian heritage is uncovered.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In
re Suzanna L. (2002) 104 Cal.App.4th 223, 231; In re Jonathan D. (2001) 92
Cal.App.4th 105, 111; accord, In re Desiree F. (2000) 83 Cal.App.4th 460, 472; but see
In re S.M. (2004) 118 Cal.App.4th 1108, 1115, fn. 3 [in dictum, stating a parent should
not be able to raise ICWA for the first time on an appeal from an order denying a
modification petition where no claims are raised on the denial of the petition].)
NOTICE - BY REGISTERED MAIL:
Section 1912(a) of the Act requires notice to the parents, Indian custodian, and
tribe by registered mail return receipt requested of any child custody proceeding and of
the rights afforded to each by the Act. (See § 1911(b), (c); In re Suzanna L. (2002) 104
Cal.App.4th 223, 232 [duty on petitioning potential adopter when it is a private
adoption]; In re H. A. (2002) 103 Cal.App.4th 1206, 1212-1213 [certified mail not
acceptable if there is no return receipt]; In re Jeffrey A. (2002) 103 Cal.App.4th 1103,
1108 [cannot rely on presumption under Evid. Code, § 664 or just because the social
worker said so; must send copy to the “Indian parent” but waived]; In re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421; but see id. at p. 1422 [citing cases where certified
mail return receipt was sufficient].)
Notice was sufficient though the tribe never received actual notice. (In re
Jasmine G. (2005) 127 Cal.App.4th 1109, 1118.)
NOTICE - CONTENT OF THE NOTICE:
“[T]o establish tribal identity, it is necessary to provide as much information as is
known on the Indian child’s direct lineal ancestors.” (25 C.F.R. § 23.11(b) (2003).) “A
16
tribe’s mere awareness of a dependency proceeding involving a possible Indian child is
not considered sufficient notice under the ICWA.” (In re Samuel P. (2002) 99
Cal.App.4th 1259, 1266, internal quotation marks omitted.) “Notice under the ICWA
must, of course, contain enough information to constitute meaningful notice.” (In re
Karla C. (2003) 113 Cal.App.4th 166, 175.) Notice is meaningless if it lacks sufficient
information. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455; In re Manuel E. (2004)
120 Cal.App.4th 521, 550.)
An allegation in a petition or evidence simply that there was a prior allegation of
unfitness is not substantial evidence without evidence the allegation was substantiated.
(In re Manuel E. (2004) 120 Cal.App.4th 521, 547.)
“The notice is meaningless because the tribe could not adequately search its
records for the relevant people.” (In re Louis S. (2004) 117 Cal.App.4th 622, 631
[misspelled one name, no information on another person, other problems]; but see In re
D.W. (2011) 193 Cal.App.4th 413, 416-418 [notice adequate though misspelled maternal
grandmother’s first name and omitted her middle name when her parents’ names were
correctly listed].)
Under federal regulations, proper notice should include: (1) the name of Indian
child, birthdate and birthplace; (2) the name of tribe(s) (eligible for) enrollment; (3) the
names, current, and former addresses of biological parents, grandparents, and any “Indian
custodian,” including married and unmarried names, aliases, birthdates, place of birth and
death, tribal enrollment number, other identifying information; (4) a copy of the petition
and initial social worker report; (5) a statement of right of parent and Indian custodian to
intervene; (6) a statement of right of appointed counsel; (7) a statement of right of 20 day
continuance; (8) the location, mailing address, phone number of court and all parties
notified; (9) a warning of consequences of possible removal and termination of parental
rights; and (10) an advisement the material should be kept confidential. (25 C.F.R. §
23.11(d) & (e); In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422-1423; In re C.D.
(2003) 110 Cal.App.4th 214, 224; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1266
[defective when not include about the dependency proceeding, no court number or date];
see In re S.E. (2013) 217 Cal.App.4th 610, 614-616 [notice inadequate when failed to list
the maternal great grandfather who might have the Indian ancestry]; In re S.M. (2004)
118 Cal.App.4th 1108, 1115 [inadequate when tribe writes back requesting specific
information]; see In re O.K. (2003) 106 Cal.App.4th 152, 156 [relying on Guidelines
found at 44 Fed.Reg. 67584, 67587 (Nov. 26, 1979)]; In re H. A. (2002) 103 Cal.App.4th
1206, 1211-1212 [relying on Guidelines B.5]; In re Suzanna L. (2002) 104 Cal.App.4th
223, 232 [inadequate notice when not advise tribe of right to intervene]; In re Jennifer A.
(2002) 103 Cal.App.4th 692, 705 [notice deficient because listed birthplace of parents
unknown and the birthplace of the minor as “California”]; but see In re Cheyanne F.
(2008) 164 Cal.App.4th 571, 576-577 [omitting information about a non-Indian relative
was not prejudicial]; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784
[incomplete information of an ancestor who did not claim Indian ancestry could not have
been prejudicial].)
17
But “[c]ompliance requires no more than completion of a preprinted form
promulgated by the State of California, Health and Welfare Agency, for the benefit of
county welfare agencies [citation] and the attachment of a copy of the dependency
petition [to] the form entitled, ‘NOTICE OF INVOLUNTARY CHILD CUSTODY
PROCEEDINGS INVOLVING AN INDIAN CHILD’ and numbered ‘SOC319,’ seeks to
conform with the [BIA regulation].” (In re H. A. (2002) 103 Cal.App.4th 1206, 1211;
accord In re Desiree F. (2000) 83 Cal.App.4th 460, 475 [dictum: the form is sufficient];
contra, In re C.D. (2003) 110 Cal.App.4th 214, 225 [the forms do not comply with the
requirements in the C.F.R].) Welfare and Institutions Code section 224.2 and 25 C.F.R.
§ 23.11(d)(3) do not require information beyond the great grandparents. (In re J.M.
(2012) 206 Cal.App.4th 375, 380-381.)
“The Guidelines are not binding on state courts. [Citation.] However, ‘cases
that have resolved notice questions have followed the Guidelines in giving a broad
reading to the obligation to give notice and redressing notice violations. . . . ’
[Citations.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255.) “The
construction of a statute by the executive department charged with its administration is
entitled to great weight.” (In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7; see
In re L.B. (2003) 110 Cal.App.4th 1420, 1425, fn. 3 [guidelines have been adopted in
California].)
The burden is on CPS to obtain the background information and provide it in the
notice. (In re S.E. (2013) 217 Cal.App.4th 614, 616; In re S.M. (2004) 118 Cal.App.4th
1108, 1115-1116 [notice inadequate when social worker failed to gather sufficient
information]; In re C.D. (2003) 110 Cal.App.4th 214, 226.) Inadequate notice when the
record shows the social worker possessed additional information that was not included in
the notice. (In re Gerardo A. (2004) 119 Cal.App.4th 988, 995.)
But cannot assume from silent record that the social worker failed to question
family members about ICWA. (In re N.E. (2008) 160 Cal.App.4th 766, 769-771; In re
Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Gerardo A. (2004) 119
Cal.App.4th 988, 995; but see In re J.N. (2006) 138 Cal.App.4th 450, 461.) As long as
CPS made some inquiry, its duty has been fulfilled. (In re S.B. (2005) 130 Cal.App.4th
1148, 1161.) There is no error when a relative obtains information but fails to relay it to
the social worker. (In re X.V. (2005) 132 Cal.App.4th 794, 804.)
Inadequate ICWA notice when most of the form marked unknown and record does
not show when sent; tribe and BIA said needed more information. (In Francisco W.
(2006) 139 Cal.App.4th 695, 700, 703-704.)
An erroneous finding by a tribe that the child does not qualify could result from
incomplete information or misspelling a name. (See, e.g., Adoptive Couple v. Baby Girl
(2013) 133 S.Ct. 2552, 2558.)
Notice was adequate when it included the names of ancestors who could have
18
been enrolled members, though the box on the form concerning enrollment was not
marked. (In re D.N. (2013) 218 Cal.App.4th 1246, 1252.)
Waiver: A parent waives the failure of CPS to make a better inquiry. (In re S.B.
(2005) 130 Cal.App.4th 1148, 1160.)
Standard of review: The trial court’s finding that ICWA notice was adequate is
reviewed for abuse of discretion. (In re J.T. (2007) 154 Cal.App.4th 986, 991.)
Retroactivity: Though notice was provided before January 1, 2007, the court’s
order was made afterwards, so the law in effect after January 1, 2007 applies. (In re J.T.
(2007) 154 Cal.App.4th 986, 991-992.)
Prejudice: Error in ICWA notice was prejudicial when it omitted information
concerning a relative who might have Indian ancestry. (In re C.B. (2010) 190
Cal.App.4th 102, 147.) It was harmless when it omitted information concerning an
ancestor with no Indian ancestry. (In re C.B. (2010) 190 Cal.App.4th 102, 141-142; In
re Brandon T. (2008) 164 Cal.App.4th 1400, 1414-1415; In re Alexis H. (2005) 132
Cal.App.4th 11, 14-16.) Error was deemed harmless as long as the tribe received notice.
(In re E.W. (2009) 170 Cal.App.4th 396, 402-403.)
NOTICE - RECORD OF NOTICE:
“To satisfy the notice provisions of the Act and to provide a proper record for the
juvenile court and the appellate courts, DSS should follow a two-step procedure. First, it
should identify any possible tribal affiliations and send proper notice to those entities,
return receipt requested. [Citation.] Second, DSS should provide the juvenile court a copy
of the notice sent and the return receipt, as well as any correspondence received from the
Indian entity relevant to the minor’s status. If the identify or location of the tribe cannot
be determined, the same procedure should be used with respect to notice to BIA.” (In re
Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. 4; accord, In re Rayna N. (2008) 163
Cal.App.4th 262, 267 [did not provide copies of return receipts to the tribes]; In re Mary
G. (2007) 151 Cal.App.4th 184, 210-211 [reverse when the tribes’s responses were not
part of the record]; In re Asia L. (2003) 107 Cal.App.4th 498, 507-509; In re H. A. (2002)
103 Cal.App.4th 1206, 1214-1215 [CPS requirement]; In re Jennifer A. (2002) 103
Cal.App.4th 692, 703-704 [the juvenile court could not have determined if ICWA applied
without knowing whether proper notice was given]; In re I.G. (2005) 133 Cal.App.4th
1246, 1253 [reverse when ICWA notice was not part of the record]; In re Elizabeth W.
(2004) 120 Cal.App.4th 900, 907-908 [no copies of return receipts in the court file,
though information was in the social worker report]; In re S.M. (2004) 118 Cal.App.4th
1108, 1118 [CPS should file all responses from the tribes]; In re Karla C. (2003) 113
Cal.App.4th 166, 178-179 [when also not in the record on appeal]; but see In re L.B.
(2003) 110 Cal.App.4th 1420, 1424-1425 [failure to provide record of notice is
appellant’s fault for not providing a complete record and can presume social worker
19
complied with legal requirements].).
Should not rely on notice provided after the notice of appeal. (See In re Zeth S.
(2003) 31 Cal.4th 396, 405; In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1451 [deny
§ 909 motion to include subsequent notice to Indian tribes because of authentication
objection on appeal and because appellant unable to respond]; but see In re S.M. (2004)
118 Cal.App.4th 1108, 1117, fn. 5; In re L.B. (2003) 110 Cal.App.4th 1420, 1426; In re
C.D. (2003) 110 Cal.App.4th 214, 226.)
Prejudice: Because the requirement for return receipts is a state requirement, not
federal law, prejudice for failing to do so is judged under the state standard. (In re S.B.
(2009) 174 Cal.App.4th 808, 812-813 [error was harmless when it is known proper notice
was sent to most tribes].)
NOTICE - SUSPEND COURT PROCEEDINGS FOR TEN DAYS:
“In accordance with the ICWA (25 U.S.C. § 1912(a)), all proceedings should have
been suspended until a minimum of 10 days after the Tribe received the notice.” (In re
Desiree F. (2000) 83 Cal.App.4th 460, 471; accord, In re Jonathan D. (2001) 92
Cal.App.4th 105, 111.) Thus, “state court have no jurisdiction to proceed with
dependency proceedings involving a possible Indian child until a period of at least 10
days after the receipt of such notice.” (Id., at p. 474.) “Once formal notification is
given to the tribe(s), proceedings cannot commence until all applicable time periods have
passed. (25 U.S.C. § 1912(a).)” (In re Desiree F. (2000) 83 Cal.App.4th 460, 476;
accord, In re Jonathan D. (2001) 92 Cal.App.4th 105, 110; In re Samuel P. (2002) 99
Cal.App.4th 1259, 1267; see In re Louis S. (2004) 117 Cal.App.4th 622, 634 [thus
reviewed the order from the 12 month review hearing as well]; but see In re Brooke C.
(2005) 127 Cal.App.4th 377, 384 [lack of notice not jurisdictional error]; In re Antoinette
S. (2002) 104 Cal.App.4th 1401, 1410-1411.)
Welfare and Institutions Code sections 224.3, subdivision (e)(3) and 224.2 require
waiting 60 days after sending notice before making a court finding. (In re Justin S.
(2007) 150 Cal.App.4th 1426, 1437; see also Guardianship of D.W. (2013) 221
Cal.App.4th 242, 250-251.) Failure to wait 60 days afer notice did not matter when
there was no evidence an Indian tribe sought to intervene within 60 days. (In re N.M.
(2008) 161 Cal.App.4th 253, 266-267.)
The court need not proceed as if the child is an Indian child before it hears from
Indian tribes. (See In re C.B. (2010) 190 Cal.App.4th 102, 135.)
Need not send initial notice anymore once a tribe intervenes. (In re Krystle D.
(1994) 30 Cal.App.4th 1778.)
NOTICE - IMPLIED FINDING OF THE COURT:
A court’s implied finding that ICWA did not apply was sufficient. (In re E.W.
20
(2009) 170 Cal.App.4th 396, 403-405; In re Asia L. (2003) 107 Cal.App.4th 498, 506; In
re Levi U. (2000) 78 Cal.App.4th 191, 199 [no reply implies tribe wishes not to
intervene], but see In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413; In re Jennifer
A. (2002) 103 Cal.App.4th 692, 705.)
“While the petitioning agency may have the duty to provide ICWA notice, it is the
role of the juvenile court, not the agency, to determine whether the ICWA notice is
proper.” (In re Nikki R. (2003) 106 Cal.App.4th 844, 852, relying on In re Samuel P.
(2002) 99 Cal.App.4th 1259, 1266-1267 and also citing In re Jeffrey A. (2002) 103
Cal.App.4th 1103, 1108; In re Marianna J. (2001) 90 Cal.App.4th 731, 739; In re
Jennifer A. (2002) 103 Cal.App.4th 692, 703, 705.)
No ICWA violation when the tribe requires certain percentage of tribal blood, and
minor would not qualify. (In re Shane G. (2009) 166 Cal.App.4th 1532, 1539.)
NOTICE - WAIVER:
Waiver: Failure to object to lack of notice under ICWA does not waive the issue.
(In re Z.N. (2010) 181 Cal.App.4th 282, 296; In re B.R. (2009) 176 Cal.App.4th 773,
779; In re J.T. (2007) 154 Cal.App.4th 986, 991; In re Nikki R. (2003) 106 Cal.App.4th
844, 849; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1408; In re H. A. (2002) 103
Cal.App.4th 1206, 1211; In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; Dwayne P.
v. Superior Court (2002) 103 Cal.App.4th 247, 257-258 [nor was it invited error; even if
brought after terminating services]; In re Samuel P. (2002) 99 Cal.App.4th 1259,
1267-1268 [disagreeing with Riva M. because tribe refused to intervene and court used
the higher burden of proof, and Pedro N. because in that case attempted to undo
jurisdiction after termination of parental rights]; In re Marinna J. (2001) 90 Cal.App.4th
731, 738-739 [parental inaction could not waive rights of tribe, disagreeing with Pedro
N.]; see In re Stephanie M. (1994) 7 Cal.4th 295, 316; In re Desiree F. (2000) 83
Cal.App.4th 460, 471; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1425 [“parents are
not necessarily knowledgeable about tribal government or membership and their interests
may diverge from those on the tribe and those of each other”]; In re Gerardo A. (2004)
119 Cal.App.4th 988, 993 [no waiver of inadequate notice when the notice was not sent
to the parent]; In re Riva M. (1991) 235 Cal.App.3d 403, 411; In re Pedro N. (1995) 35
Cal.App.4th 183 [parent with knowledge of ICWA applicability waives notice issues
when failed to challenge the court’s action until after termination of parental rights; but
Marinna J. and Dwayne P.].)
“We are well aware that trial counsel for a parent in dependency proceedings
rarely bring ICWA notice deficiencies to the attention of the juvenile court. That job, it
seems, is routinely left to appellate counsel for the parent.” (In re Justin S. (2007) 150
Cal.App.4th 1426, 1436.)
Waiver: Failing to object to defect in the notice at a remand hearing waives the
claim. (In re N.M. (2008) 161 Cal.App.4th 253, 269; In re Amber F. (2007) 150
Cal.App.4th 1152, 1156 [failure to object to defects in the notice on remand waives the
21
issue]; In re X.V. (2005) 132 Cal.App.4th 794, 802-804 [failure to object to defects in
notice on remand waives the issue on appeal]; but see In re Alicia M. (2008) 161
Cal.App.4th 1189, 1195-1197 [6th District holds there is no waiver, especially when the
prior problem was failure to inquire and current problem was notice sent to the wrong
addresses].)
Waiver: But a parent waives ICWA issues when he or she states there is no
Indian heritage. (In re E.H. (2006) 141 Cal.App.4th 1330, 1334.)
Waiver: Not objecting to failure to send notice to appellant as the “Indian parent”
waived without objection. (In re Jeffrey A. (2002) 103 Cal.App.4th 1103, 1108; In re
L.B. (2003) 110 Cal.App.4th 1420, 1426.)
Waiver: A parent waives the failure of CPS to make a better inquiry. (In re S.B.
(2005) 130 Cal.App.4th 1148, 1160.)
Waiver: Matter not waived though could have raised the issue in the sibling’s
earlier appeal. (In re A.G. (2012) 204 Cal.App.4th 1390, 1400; In re Marinna J. (2001)
90 Cal.App.4th 731; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247; In re
Pedro N. (1995) 35 Cal.App.4th 183, 189.) But any error was harmless when the tribes
determined the sibling did not qualify. (In re J.M. (2012) 206 Cal.App.4th 375, 383.)
Standing: Non-Indian parent has standing to raise ICWA. (In re B.R. (2009)
176 Cal.App.4th 773, 779-780; In re Jonathon S. (2005) 129 Cal.App.4th 334, 339; but
see In re S.M. (2004) 118 Cal.App.4th 1108, 1115, fn. 3 [dictum]; In re Isayah C. (2004)
118 Cal.App.4th 684, 693-694, fn. 9 [dictum].)
Standing: Grandparent and de facto parent does not have standing to raise
problems with ICWA notice. (In re Michael A. (2012) 209 Cal.App.4th 661, 664-666.)
NOTICE - REMEDY:
Tribe cannot invalidate proceedings where notice was provided and tribe
participated with general appearances. (In re Krystle D. (1994) 30 Cal.App.4th 1778.)
Remand to give notice; if no tribe intervenes, the juvenile court shall reinstate its
orders. (In re Damian C. (2009) 178 Cal.App.4th 192, 199-200 [in an appeal after the
dispositional hearing, remand did not require reversal of the finding of jurisdiction]; Tina
L. v. Superior Court (2008) 163 Cal.App.4th 262, 267-268 [even after amendments to
Welf. & Inst. Code, § 224.2, subd. (d)]; People v. Lincoln (2007) 157 Cal.App.4th 196,
185-186 [holding limited remand is appropriate]; In Francisco W. (2006) 139
Cal.App.4th 695, 704-10 [holding that limited remand is the appropriate remedy]; In re
I.G. (2005) 133 Cal.App.4th 1246, 1255 [remand to the supervising dependency judge for
expedited adjudication]; In re Brooke C. (2005) 127 Cal.App.4th 377, 385 [relief is
22
limited to sending notice]; In re Suzanna L. (2002) 104 Cal.App.4th 223, 237; In re H. A.
(2002) 103 Cal.App.4th 1206, 1215 [“limited remand”]; In re Jeffrey A. (2002) 103
Cal.App.4th 1103, 1109; In re Jennifer A. (2002) 103 Cal.App.4th 692, 709; Dwayne P.
v. Superior Court (2002) 103 Cal.App.4th 247, 261; In re Jonathan D. (2001) 92
Cal.App.4th 105, 111-112; see In re K.B. (2009) 173 Cal.App.4th 1275, 1287 [when
remand for adequate ICWA notice, the court must consider invaliding prior orders if it is
later determined ICWA applies]; but see Nicole K. v. Superior Court (2007) 146
Cal.App.4th 779, 485 [reversed the order terminating parental rights because the court
potentially used the wrong burden of proof].) When remand for new ICWA notice, the
social worker must give notice to the parent and counsel who must have an opportunity to
be heard. (In re Justin S. (2007) 150 Cal.App.4th 1426, 1434-1435.)
With a limited remand for ICWA notice, a parent cannot file a section 388
petition. (In re Terrance B. (2006) 144 Cal.App.4th 965, 973-974.)
When reverse, do not reverse all orders. (In re S.M. (2004) 118 Cal.App.4th
1108, 1119, fn. 6.) Reverse only the order appealed from. (In re Jonathon S. (2005)
129 Cal.App.4th 334, 340; In re Brooke C. (2005) 127 Cal.App.4th 377, 385.)
Prejudice: “Section 1914 of the Act provides that any action placing an Indian
child in foster care or terminating parental rights may be invalidated upon showing that
section 1911, 1912, or 1913 of the Act has been violated.” (In re Kahlen W. (1991) 233
Cal.App.3d 1414, 1426.)
“The juvenile court’s failure to secure compliance with the notice provisions of the
Act is prejudicial error.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424.)
“Courts have consistently held failure to provide required notice requires remand unless
the tribe has participated in the proceedings or expressly indicated they have no interest
in the proceedings.” (Ibid.) Defective notice is “ ‘usually prejudicial.’ [Citation.]” (In
re Nikki R. (2003) 106 Cal.App.4th 844, 849-850; id. at pp. 854-855 [unless additional
evidence shows remand would be futile, must remand for the juvenile court to make the
determination].) Failure to properly notify the tribe requires reversal of all orders. (In re
Mary G. (2007) 151 Cal.App.4th 184, 211 [disagreeing with Rebecca R. (infra)]; In re
Jonathan D. (2001) 92 Cal.App.4th at p. 111 [same]; In re Marinna J. (2001) 90
Cal.App.4th 731, 738-739; In re Desiree F. (2000) 8 Cal.App.4th 460, 472; In re Derek
W. (1999) 73 Cal.App.4th 828; but see In re Rebecca R. (2006) 143 Cal.App.4th 1426,
1431 [do not reverse unless it was a miscarriage of justice; here there was no evidence the
parents would have reported Indian ancestry if asked]; In re J. N. (2006) 138 Cal.App.4th
450, 461-462 [though there is no indication the parents had Indian ancestry]; In re S.B.
(2005) 130 Cal.App.4th 1148, 1162 [error in notice harmless when the tribe actually
participates, the minor would not have been found to be an Indian child, or when the
court complied with the higher standard of proof]; In re Christopher I. (2003) 106
Cal.App.4th 533, 566-567 [substantial compliance sufficient; failure to notify BIA
harmless when tribe decided minor was not eligible]; In re Antoinette S. (2002) 104
Cal.App.4th 1401, 1413 [not reversible per se, harmless here based on subsequent notice
23
sent to BIA]; In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8 [lack of notice may
not always be prejudicial].) “Since the failure to give proper notice of a dependency
proceeding to a tribe with which the dependent child may be affiliated forecloses
participation by the tribe, notice requirements are strictly construed.” (In re Samuel P.
(2002) 99 Cal.App.4th 1259, 1267 [failure to strictly comply with the notice requirement
is prejudicial error].)
Adoption invalid if not comply with ICWA. (25 U.S.C. § 1914; In re A.B.
(2008) 164 Cal.App.4th 832, 839, fn. 4; In re Desiree F. (2000) 83 Cal.App.4th 460,
473-476; but see In re Laura F. (2000) 83 Cal.App.4th 583, 594.)
Defect in notice is harmless when the tribe appears in court but chooses not to
request any change in orders. (In re Miracle M. (2008) 160 Cal.App.4th 834, 846-847.)
Prejudice: Ordering adoption on clear and convincing evidence instead of beyond
a reasonable doubt was error but harmless when the parent failed two rehabilitations
programs. (Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 997-998.)
Prejudice: Violation of state statute on ICWA notice is subject to harmless error
analysis. (In re H.B. (2008) 161 Cal.App.4th 115, 121-122.)
INTERVENTION:
Response by tribe from someone not identified as the chair or a designated chair
does not make the tribe’s denial to intervene valid. (In re H. A. (2002) 103 Cal.App.4th
1206, 1214.)
If the juvenile court has information that the child is “or may be an Indian child,
the court shall proceed as if the child is an Indian child . . . complying with the Act and
this rule.” (Cal. Rules of Court, rule 1439(e).)
Even if the tribe does not respond to notice, the Act shall be applied to the entire
proceeding if the court has reason to now the child is an Indian child. (Cal. Rules of
Court, rule 1439(c)(3) & (e).) However, only notice and further inquiry is required if the
child may only possess Indian ancestry. (Cal. Rules of Court, rule 1439(e).)
Failure of tribe to respond should be seen as a finding the child does not qualify.
But “Absent evidence the notice was sufficient, a tribe’s nonresponse may not be deemed
‘tantamount to determinations that the minor [is] not an “Indian child” within the
meaning of the [ICWA]. [Citations.]” (In re Karla C. (2003) 113 Cal.App.4th 166,
178.)
Under 25 U.S.C. § 1911(a), the Indian tribe has exclusive jurisdiction if the child
lives on a reservation. However, California courts have concurrent civil jurisdiction
under Public Law 280 (18 U.S.C. § 1162(a) [see also 28 U.S.C. § 1360(a)]). Thus,
California dependency courts would have jurisdiction. (See In re Laura F. (2000) 83
Cal.App.4th 583; Native Village of Venetie I.R.A. Council v. State of Alaska (9th Cir.
24
1991) 944 F.2d 548.) Under Public Law 280, 11 U.S.C. § 1162(a) and 28 U.S.C. §
1360(a) creates five mandatory states which have jurisdiction over Indians in the state,
and other states can opt in. (Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1048,
1050-1051.) In those states, tribes do not have exclusive jurisdiction over minors on
reservations. (Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1040, 1068.) “ICWA
subsection 1911(b) authorizes transfer of jurisdiction to tribal courts regardless of [Public
Law] 280,” and regardless of whether a tribe complies with section 1918. (In re C.R.H.
(Alaska 2001) 29 P.3d 849, 854.) State jurisdiction in California is exclusive unless the
tribe successfully petitions to resume jurisdiction under § 1918, then state jurisdiction is
concurrent and not exclusive. (In re M.A. (2006) 137 Cal.App.4th 567, 574.) Section
1911(b) authorized transfer to the tribe regardless of Public Law 280 and the tribe’s
compliance with section 1918. (In re M.A. (2006) 137 Cal.App.4th 567, 593.) A
transfer is timely if made soon after proper notice, regardless of when the dependency
started. (In re Jack C. (2011) 192 Cal.App.4th 967, 984-985.) A court cannot
determine if an Indian court is an inconvenient forum under Welfare and Institutions
Code section 305.5, subdivision (c)(2)(A) without an evidentiary hearing. (In re Jack C.
(2011) 192 Cal.App.4th 967, 985-986.) The court must hold a transfer hearing for each
child. (In re Jack C. (2011) 192 Cal.App.4th 967, 986-987.)
If the child does not live on a reservation, the matter shall be transferred to a tribal
court unless there is good cause. (25 U.S.C. § 1911(b); Cal. Rules of Court, rule
1439(c); see In re Desiree F. (2000) 83 Cal.App.4th 460, 469; Robert T. (1988) 200
Cal.App.3d 657 [issue handled as a motion on forum non conveniens]; but see In re
Larissa G. (1996) 43 Cal.App.4th 505 [objection by either parent vetoed transfer].)
California courts view Indian courts as independent sovereigns. (In re M.M.
(2007) 154 Cal.App.4th 897, 908-909.)
An Indian tribe may appear on its own behalf. (Cal. Rules of Court, rules
1410(b)(7), 1412(i).)
A tribe cannot relitigate the applicability of ICWA in federal court. (Morrow v.
Winslow (10th Cir. 1996) 94 F.3d 1386, 1390 [the doctrine of Younger abstention
prevented the issuance of a federal injunction during an ongoing state custody
proceeding]; Comanche Indian Tribe of Okla. v. Hovis (10th Cir. 1995) 53 F.3d 298, 303
[relying on collateral estoppel]; Kiowa Tribe of Okla. v. Lewis (10th Cir. 1985) 777
F.2d 587, 592 [relying on res judicata].) But the federal court can consider an ICWA
issue and reverse a state juvenile court if the matter was not litigated in state appellate
courts. (Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1047.) The tribe has a right to
effective assistance of counsel. (Doe v. Mann (N.D. Cal. 2003) 285 F.Supp.2d 1229,
1239-1240, aff’d, Doe v. Mann (9th Cir. 2005) 415 F.3d 1038.)
Waiver: Tribe that intervened waives previous orders by not appealing. (In re
Liliana S. (2004) 115 Cal.App.4th 585, 589.)
25
Waiver: Whether to transfer to a tribal court is jurisdictional. (In re Jack C.
(2011) 192 Cal.App.4th 967, 987.)
Appealability: An order transferring a case from a California court to a tribal
court has been appealed twice without consideration of whether the court of appeal has
jurisdiction. (See In re M.A. (2006) 137 Cal.App.4th 567, 571, 578; In re Larissa G.
(1996) 43 Cal.App.4th 505, 508 [reversing the transfer order].) But one court said the
California courts lose jurisdiction unless the appellant obtains an immediate stay. (In re
M.M. (2007) 154 Cal.App.4th 897, 913-916.)
Standard of review: Whether the court properly decided not to transfer to a tribal
court is reviewed for substantial evidence. (Fresno County Dept. of Children and
Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 644-646.)
REMOVAL:
Indian Child Welfare Act give different evidentiary and procedural rules. (25
U.S.C. § 1912, 1915; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S.
30.)
Emergency removal and placement is allowed. (In re Desiree F. (2000) 83
Cal.App.4th 460.)
Before removal or placement with a non-Indian family, or termination of parental
rights, must provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family. (25 U.S.C. § 1912(d); see Adoptive Couple v. Baby
Girl (2013) 133 S.Ct. 2552, 2562-2563 [§ 1912(d) applies to the custodial parent, or
perhaps one who has not abandoned the child]; In re Crystal K. (1990) 226 Cal.App.3d
655, 666; In re Michael G. (1998) 63 Cal.App.4th 700 [active measures require clear and
convincing evidence]; In re Matthew Z. (2000) 80 Cal.App.4th 545 [such a finding may
be made when terminate reunification services]; In re Pima County Juvenile Action (Ariz.
Ct. App. 1981) 635 P.2d 187.) ICWA contemplates services beyond what normally
offered. (H. R. Rep. No. 1386, 95th Cong. 2d Sess. 22 (1978).) The rehabilitative
services should take into account the prevailing social and cultural conditions and way of
life of the child’s tribe. (44 Fed.Reg. 67582(D2).) Efforts shall include resources of
extended family members, the tribe, Indian social services agencies, and Indian
caregivers. (Cal. Rules of Court, rule 1439(k)(2) & (l)(4).) This requirement cannot be
waived without an expressed, knowing and intelligent waiver. (Cal. Rules of Court, rule
1439(i)(2) & (j)(2); but see Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009
[failure to provide additional services effectively harmless when parent failed to do
services that were court ordered]; In re William G. (2001) 89 Cal.App.4th 423 [need not
be offered to parent not available to do them].)
No foster placement can be ordered without clear and convincing evidence,
26
including testimony of a qualified expert witness that continued custody is likely to result
in serous emotional or physical damage. (25 U.S.C. § 1912(e); In re Jennifer A. (2002)
103 Cal.App.4th 692, 704 [applies when previous notice was defective]; see C.F. v.
Superior Court (2014) 23 Cal.App.4th 227, 238 [“active efforts” the same as reasonable
services under California law]; but see id. at p. 238, fn. 7 [California’s is a minority
view]; In re J.B. (2009) 178 Cal.App.4th 751, 755-760 [expert testimony is not necessary
when the minor is placed with the other parent]; but see In re G.L. (2009) 177
Cal.App.4th 683, 698 [good cause to not place with Indian custodian when there was
evidence the child would not be protected from the parents]; In re A.A. (2008) 167
Cal.App.4th 1292, 1317-1319 [ICWA’s requirements are the same as California’s]; In re
S.B. (2005) 130 Cal.App.4th 1148, 1164-1166 [ICWA’s requirements for remedial
measures and its standard of proof is the same as California’s].) Custody means legal or
physical custody. (See In re Crystal K. (1990) 226 Cal.App.3d 655.) A qualified expert
witness requires expertise more than that possessed by a social worker. (H. R. Rep. No.
1386, 95th Cong. 2d Sess. 22 (1978); In re Pima County Juvenile Action (Ariz. Ct. App.
1981) 635 P.2d 187; 44 Fed.Reg. 67583, 67593(D4); Cal. Rules of Court, rule
1439(a)(10)(C); Manual of Policies and Procedures, Cal. Dept. of Social Services §
31-515.14.141; In re Jennifer A. (2002) 103 Cal.App.4th 692, 706-707; see In re M.B.
(2010) 182 Cal.App.4th 1496, 1505-1506 [the expert need not interview the parents];
Doe v. Mann (9th Cir. 2005) 415 F.3d 1038, 1065; but see In re S.B. (2005) 130
Cal.App.4th 1148, 1165-1166.) This cannot be waived without an expressed, knowing
and intelligent waiver. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 707; In re
Kystle D. (1994) 30 Cal.App.4th 1778 [can introduce other expert witnesses]; but see In
re Riva M. (1991) 235 Cal.App.3d 403, 411 [failure to use correct burden of proof
waived without objection].) The purpose of requiring an Indian expert before removal is
to offer a cultural perspective of the parent’s conduct with the minor and to prevent the
unwarranted interference by the state because of cultural bias. (In re M.B. (2010) 182
Cal.App.4th 1496, 1505.)
“In judging the fitness of a particular family, many social workers, ignorant of
Indian cultural values and social norms, make decisions that are wholly inappropriate in
the context of Indian family life and so they frequently discover neglect or abandonment
where none exists.” H.R. Rep. No. 95-1386, at 10 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7532.
Tribal placement is permissible if it is within “reasonable proximity” of home
depends on whether it interferes with visitation and reunification services. (In re
Anthony T. (2012) 208 Cal.App.4th 1019, 1028-1032.)
Can depart from preference for placement with Indian family for good cause. (In
re Baby Girl A. (1991) 230 Cal.App.3d 1611 [good cause includes unsuccessful diligent
search for Indian placement, requests of the parents, and extraordinary needs as
established by a qualified expert witness]; see In re N.M. (2009) 174 Cal.App.4th 328,
335-338; In re K.B. (2009) 173 Cal.App.4th 1275, 1288-1290 [the court’s consideration
27
of placement with relatives before it knew ICWA applied was all that was required under
ICWA]; see In re Desiree F. (2000) 83 Cal.App.4th 460 [trauma from moving the minor
irrelevant upon flagrant violations of ICWA]; but see Adoption of Lindsey C. (1991) 229
Cal.App.3d 404; In re Liliana S. (2004) 115 Cal.App.4th 585, 590 [extended family
member need not be on a reservation]; In re Julian B. (2000) 82 Cal.App.4th 1337,
1346-1347 [family member with criminal record precludes placement under section
361.4]; In re Matthew Z. (2000) 80 Cal.App.4th 545 [once makes finding, need not
continue to make findings].)
To determine good cause for not placing with Indian family, consider the request
of the biological parents or minor, the needs of the minor from the testimony of a
qualified expert, unavailability of a suitable family after a diligent search. (In re
Alexandria P. (2014) 228 Cal.App.4th 1322, 1352-1353; Fresno County Dept. of
Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 642.) There
was good cause when the court wished to keep the siblings together. (Fresno County
Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th
626, 646.) The party asserting good cause has the burden of proof. (In re Alexandria P.
(2014) 228 Cal.App.4th 1322, 1348-1352 [burden of proof is clear and convincing
evidence]; see Fresno County Dept. of Children & Family Services v. Superior Court
(2004) 122 Cal.App.4th 626, 632.)
The moving party need not show “certainty” the minor would suffer harm if
removed from the non-Indian family. (In re Alexandria P. (2014) 228 Cal.App.4th
1322, 1353-1354.) The court must consider the minor’s bond with the current foster
parents. (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1354-1355.) The court
must consider the minor’s best interests. (In re Alexandria P. (2014) 228 Cal.App.4th
1322, 1355-1356.)
The grounds for denying reunification services under Welfare and Institutions
Code section 361.5 are relevant toward whether there should be “active efforts” to keep
an Indian family intact under ICWA. (In re K.B. (2009) 173 Cal.App.4th 1275,
1282-1285.)
CPS services for the minor, though none were offered to the parents, were
sufficient “active efforts” to permit termination of parental rights. (In re K.B. (2009) 173
Cal.App.4th 1275, 1286-1288.) There were sufficient “active efforts” when CPS made
reasonable efforts to enroll the minor in a tribe, despite delays in submitted the
application. (In re C.B. (2010) 190 Cal.App.4th 102, 136-139.)
“No termination of parental rights may be ordered in such proceeding in the
absence of a determination, supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical damage to
the child.” (25 U.S.C. § 1912(f); see Adoptive Couple v. Baby Girl (2013) 133 S.Ct.
2552, 2560-2562 [§ 1912(f) applies to the custodial parent]; accord, Cal. Rules of Court,
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rule 1439(m).) The testimony of only one qualified witness is sufficient. (In re
Brandon T. (2008) 164 Cal.App.4th 1400, 1412-1413.) The court need not make
express findings. (In re A.A. (2008) 167 Cal.App.4th 1292, 1320-1321.) The court can
terminate parental rights, though the tribe recommended guardianship. (In re T.S. (2009)
175 Cal.App.4th 1031, 1038-1041.) The court need not continue the section 366.26
hearing in order to provide an opportunity to enroll the minor in a tribe. (In re C.B.
(2010) 190 Cal.App.4th 102, 132-133.)
Though not required by Congress, federal guidelines and Welfare and Institutions
Code section 224.6 require evidence about prevailing social and cultural standards of the
tribe. (See In re Brandon T. (2008) 164 Cal.App.4th 1400, 1413-1414.)
When an Indian parent signs a form designated someone else to be the custodian,
the latter is the Indian custodian under ICWA. (In re G.L. (2009) 177 Cal.App.4th 683,
693.) But failure to provide notice to the Indian custodian was not error when the status
was revoked before the notice would have been sent. (In re G.L. (2009) 177
Cal.App.4th 683, 694-695.)
ICWA provides not additional requirements if a tribe never intervenes. (In re L.B
(2003) 110 Cal.App.4th 1420, 1427.)
Failure to comply with ICWA notice requirements does not divest the court of
jurisdiction to remove the child. (In re K.B. (2009) 173 Cal.App.4th 1275, 1282.)
Waiver: Failure to object to the Indian expert’s testimony for lack of proper
investigation waives the claim on appeal. (In re M.B. (2010) 182 Cal.App.4th 1496,
1505-1506.)
Waiver: The tribe consenting to placement with non-Indian foster parents did not
forfeit its later request to place the minor with Indian relatives. (In re Alexandria P.
(2014) 228 Cal.App.4th 1322, 1346-1347.)
Standard of review: Review failure to place with Indian family for substantial
evidence, even when there was a section 388 petition. (In re G.L. (2009) 177
Cal.App.4th 683, 697-698; In re N.M. (2009) 174 Cal.App.4th 328, 335; Fresno County
Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626,
644.)
Standard of review: Whether there was sufficient “active efforts” is reviewed for
substantial evidence. (C.F. v. Superior Court (2014) 230 Cal.App.4th 227, 238-239; In
re Michael G. (1998) 63 Cal.App.4th 700, 715-716.)
Prejudice: Harmless error found when there was failure to send notice to the
Indian custodian. (See In re G.L. (2009) 177 Cal.App.4th 683, 695-696.)
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